Point of Law: Ex parte order - Limitation - The expression ‘sufficient cause’, for satisfaction of which applicant has to plead necessary facts coupled with obligation to satisfy Court as to their existence, which necessarily has to be on a case to case basis.

ORDER :

AVINASH G. GHAROTE, J.

1. A learned Single Judge of this Court in Maharashtra State Cotton Marketing Employees Co-operative Spinning Mill Limited, Akola Vs. Satish Narayanrao Gawande, 2019 (6) Bom.C.R. 15, while considering an issue as to whether the Court had the power to condone the delay if an application under Section 31 (2) of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (for short “the Act of 1971” hereinafter) was made after a period of thirty days from the date of such ex parte order, but within thirty days of receiving the copy of such ex parte order, and noticing the conflict of views as indicated in para 15 thereof (para 17 of 2019 SCC OnLine Bom 247) which is as under :-

“17. It can thus be seen that on one hand, it has been held by the Division Bench in Letters Patent Appeal No. 3 of 2004 [supra] that there is no power with the Court concerned to condone the delay on the lines of such power as provided under Section 28(1) of the said Act which decision has been subsequently followed in Dilip Vithalrao Jogdand and Baban Raosaheb Dongre (supra). There is yet another line of cases taking the view that such delay is liable to be condoned. In Shrirang Pandurang Tadas and Sopan Ramkrishna Nirmal (supra) applications filed under Section 31(2) of the said Act after a period of thirty days have been entertained and allowed. Though the decision in Shrirang Pandurang Tadas [supra] has been held to be per incuriam by learned Single Judge in Baban Raosaheb Dongre (supra), that very decision has been followed by another learned Single Judge in Sayaji & Others (supra) for restoring the complaint that was dismissed by the Industrial Court. The conflict in views is thus apparent.

was of the opinion :-

In my view, the question whether the Industrial Court has the power to entertain an application under Section 31(2) of the said Act if made beyond the period of thirty days from the date of the order but within thirty days of receiving copy of the ex parte order is of general importance and arises frequently for consideration. Primafacie, on a plain reading of Section 31(2) of the said Act it is seen that what is required is making of an application to the Court for setting aside the ex parte order made under Section 31(1) of the said Act within thirty days of receiving a copy thereof. There does not prima-facie appear any bar or prohibition to entertain such application if made after period of thirty days of receipt of the copy of the order.”

and in view of the conflict noticed, framed the following question :-

Question :

“Whether the Court under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 has the power to set aside an ex parte order made under Section 31 (1) of the said Act, if an application to set aside such order as contemplated by the provisions of Section 31 (2) of the said Act is made after a period of thirty days from the date of that ex parte order despite such application having been made within a period of thirty days of receiving a copy of that order ?”

which has been referred to this Division Bench by the Hon'ble the Chief Justice for an answer, which hereinafter is referred to as question No.1.

2. On 24/3/2021, considering the prima facie opinion as expressed in the referral order, dated 1/10/2019 that there did not appear any bar or prohibition to entertain an application for restoration, if made after a period of 30 days of receipt of the copy of the order, we felt that the original question framed, as it did not address this view, an additional question was required to be framed, which naturally and consequentially followed the question framed and referred. We therefore framed the following additional question :-

Question :

“Whether an application received after 30 days of the receipt of copy of the order could be dealt with in accordance with the provisions contained in Section 29 (2) of the Limitation Act, so that i